References: we all need them at some point in our working lives but as the working landscape becomes ever more perilous, employers need to be careful about what they say in references or sometimes, even what they don’t say.
The general principle is that employers are not under a duty to provide a personal reference for an employee or former employee. If references are provided by employers then a duty of care is owed by the employer to the former employee and also to the person requesting the reference. Care should be taken to ensure that such a reference (whether verbal or written) is a true, accurate and fair reflection of the employee’s record. If the reference is untrue, unfair or inaccurate, there is the possibility that an employer may become liable for damages or incur some other liability to the employee in question or even to the employee’s prospective employer. Liability could accrue in claims arising from defamation and negligence, in particular, a claim known as “negligent misstatement”.
When employees are or have been the subject of disciplinary proceedings but the employer agrees to provide reference nonetheless, greater care must be taken to ensure accuracy and fairness. Of use to employers who find themselves in such circumstances is the case of Bartholomew v. London Borough of Hackney, a 1999 Court of Appeal case. In that case, Mr. Bartholomew had been suspended on allegations of financial irregulatories. A claim of race discrimination followed which concluded with the ceasing of the disciplinary process. The employee, Mr Bartholomew, then applied for another job. His former employer, the London Borough of Hackney, gave a reference that, amongst other things, stated that Mr Bartholomew had taken ‘voluntary severance’ whilst suspended for alleged gross misconduct. The charges had in fact lapsed on Mr Bartholomew’s departure from Hackney. The job offer made to Mr Bartholomew was withdrawn leading to Mr Bartholomew suing Hackney for negligence. He lost the case. The Court of Appeal decided that a reference must be in substance, true, accurate and fair and must not give a misleading impression but, the Court of Appeal said, that the reference does not always have to be full and comprehensive. In that particular case, the statements were held to be true and were not, if viewed in the round, inaccurate or misleading. Had the London Borough of Hackney failed to mention the disciplinary proceedings, it might have breached a duty of care to the party seeking the reference. Such a duty of care also extends to the subject of a reference as well.
Employers could find themselves the subject of constructive dismissal claims if they refer to matters (especially matters relating to conduct issues) in a reference, which have never been discussed with an employee. Including such issues in a later reference may be a breach the duty of care owed to an employee. For example, in the case of TSB Bank v. Harris (2000) EAT, the TSB had given Miss Harris a final warning in relation to her conduct but additionally she had been the subject of complaints from customers which, although she was aware of two, the others complaints (of which there were around seventeen) had not been made known to her (in line with the bank’s normal practice). When a reference request was received by TSB for a job for Miss Harris elsewhere (which she had applied for while still employed by TSB), the reference from TSB included comments about the seventeen complaints of which Miss Harris was unaware. She ultimately failed to secure the new job and subsequently discovered the reason for this. She resigned and successfully claimed constructive dismissal. The basis was a breach by the employer of the implied duty of trust and confidence owed to Miss Harris. Employers need to exercise reasonable care when compiling the references they provide. The test is whether a reasonably prudent employer, subject to the facts of each case, would have expressed opinions which are stated in such references.
Employers must be aware of the fact that liability may arise not only for what it said but possibly for what is not said in certain circumstances. Liability may accrue to the person requesting a reference if a reference is given for an incompetent employee which focuses on positive aspects of their character. For example, an incompetent employee may nevertheless be a good team player, but if the reference stops short of providing key information regarding poor performance – which could be very important for a future employer (particularly if the line of work the employee is applying for is the same as with the former employer), the former employer may be the subject of a claim from the new employer if it is discovered that an employee was sacked for poor performance. Such a reference could be as poor as one which contains incorrect information.
Employers also need to consider liability incurred by an employer where no reference is actually given. Liability will not usually arise in circumstances where an employer, as a matter of normal custom and practice, declines to provide references or, more usually, provides a confirmatory reference only limited to stating the dates of service of the employee and the capacity in which they were employed but nothing more. However, liability could be incurred where the employer’s practice is to provide references to some employees but not to others. If the reason for refusing other reference requests could be said to be discriminatory or if the contents are designed to be detrimental for discriminatory reasons, in such cases there will be liability on the part of the employer. In the recent case of Rhys Harper v Relaxion Group plc (2003), the House of Lords held that protection against discrimination (whether discrimination was on grounds of sex, race or disability) does not cease when the employment ends. It is unlawful to discriminate against a former employee where there is a substantive connection between the discriminatory conduct and the employment relationship, whenever the discriminatory conduct complained of arose.
Employers should therefore be careful about the manner in which references are given. If the normal practice is for statements of employment to be confined to dates and positions held, such a practice should be consistently followed in order to avoid liability either for negligence or for discrimination claims. Where more complete references are given, these should be carefully vetted for accuracy. If there is potentially detrimental information contained in such references, employers should consider why such information is being included. If the aim is to make potential employers aware of, for example, serious issues concerning misconduct, then a duty of care may be owed to those potential employers which overrides the duty of care owed to employees. In a risk averse society, employers will, we believe, increasingly move to declining detailed reference requests and move to providing only minimal information.
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